| Matter of Graham v Morrow |
| 2013 NY Slip Op 07889 [111 AD3d 1178] |
| November 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of David Graham, Respondent, v CathyMorrow, Appellant. (And Another Related Proceeding.) |
—[*1] Jane M. Bloom, Monticello, for respondent. Gail Rubenfeld, Monticello, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh,J.), entered July 9, 2012, which, among other things, granted petitioner's application, intwo proceedings pursuant to Family Ct Act article 6, to modify a prior order of custodyand visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of one child (born in 2003). Pursuant to a March 2008 order, theparties shared joint legal custody of the child, with the mother having primary physicalcustody. The terms of the father's visitation were thereafter modified by a September2010 consent order, which also set forth various provisions aimed at promotingcooperation between the parties regarding the child's extracurricular activities. In June2011, the father commenced the first of these proceedings, seeking to modify visitation,primarily for the purpose of facilitating the child's participation in certain activities. Thefather commenced the second of these proceedings in August 2011, seeking physicalcustody of the child.[FN*]Following a trial and a Lincoln hearing, [*2]Family Court found that the father had demonstrated therequisite change in circumstances and awarded him physical custody, with liberalparenting time granted to the mother. The mother now appeals and we affirm.
The mother's sole contention on appeal is that Family Court erred in finding that thefather met his burden of showing that there had been a change in circumstances sufficientto demonstrate a genuine need for modification of the custody order to ensure thecontinued best interests of the child (see Matter of Deyo v Bagnato, 107 AD3d 1317, 1318[2013], lv denied 22 NY3d 851 [2013]; Matter of Youngs v Olsen, 106 AD3d 1161, 1163 [2013];Matter of Anthony MM. vJacquelyn NN., 91 AD3d 1036, 1037 [2012]). The record here is replete withevidence that the mother engaged in a course of conduct—including her attemptsto alienate the child from the father—that demonstrated a change in circumstanceswarranting modification and the grant of physical custody to the father. One troublingexample of such conduct was the mother's repeated practice of making reports—allof which were deemed to be unfounded—to various authorities and treatmentproviders, claiming that the child had been sexually abused by the father's then14-year-old son. In this regard, a State Police investigator conducted a controlledtelephone call between the mother and the father in which the mother acknowledged thatshe had, in the past, threatened the father that she would do everything she could toensure that he did not have a relationship with the child and admitted that this might havebeen her motivation for the accusation.
The mother also consistently violated prior court orders. Contrary to the father'srights of joint legal custody, the mother enrolled the child in counseling, then terminatedcounseling, and started the child on medication without consulting or informing thefather. Additionally, despite a specific provision in the September 2010 order requiringthe parties to ensure that the child participate in Girl Scout activities, the mother failed tobring the child to meetings and events and did not inform the father that she was notdoing so. She also routinely picked the child up early from Girl Scouts and, on oneoccasion, pulled the child, crying, from a Thanksgiving celebration before the feast hadbegun.
Other actions reflected the mother's interference with the father-child relationship,including her making further reports against the father to Child Protective Services thatwere determined to be unfounded, her attempts to create problems for the father with hisemployer and her commencement of Family Court proceedings seeking to limit thefather's visitation, which were ultimately dismissed as lacking in merit. Accordingdeference to Family Court's credibility assessments, we are satisfied that the record as awhole fully establishes the requisite change in circumstances and supports the award ofphysical custody to the father and we, therefore, decline to disturb it (see Matter ofYoungs v Olsen, 106 AD3d at 1163; Matter of Timothy N. v Gwendolyn N., 92 AD3d 1155,1156-1157 [2012]; Matter of Anthony MM. v Jacquelyn NN., 91 AD3d at1037-1038).
Rose, J.P., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother alsocommenced two modification proceedings in July 2011 and September 2011, seeking toterminate and/or modify the father's visitation. Both of these proceedings were dismissed.